Convict asks new trial in '98 killing

Defense lawyers call gunshot residue evidence badly flawed

August 03, 2005|By Julie Bykowicz | Julie Bykowicz,SUN STAFF

Six years ago, the Baltimore Circuit Court judge who sentenced a college student to life in prison in a murder case that hinged on gunshot residue said he would set the man free if evidence was found showing he did not commit the crime.

Tyrone Jones was back in court yesterday.

Jones and a team of public defenders are arguing in a motion for a new trial that two particles of gunshot residue found on his left hand June 24, 1998, the evening of a fatal shooting in East Baltimore, could have come from the way the Baltimore Police Department collected the tiny scraps of evidence.

A quality assurance expert testified yesterday that because Jones came into contact with police officers, handcuffs and the back seat of a patrol car - which all can be contaminated with gunshot residue - before his hands were swabbed for the substance, a report saying he had "most probably" fired a gun or been near a gun when it was fired is "not scientifically defensible."

"Because of the long-standing, systemic and severe contamination problems, that report is irreparably compromised," said Janine Arvizu, the quality expert who specializes in laboratories.

Jones' case is among hundreds that the forensics division of the state public defender's office has been reviewing to find instances where gunshot residue testing done by the police crime lab could have resulted in a wrongful conviction.

Powder-like particles explode from a fired gun, and police can sometimes find gunshot residue on the hands of suspects. For years, gunshot residue has been used as key scientific evidence in the city's prosecution of weapons, shooting and murder cases.

Prosecutors - who stand by Jones' conviction - say they use the evidence sparingly and never pursue cases where the sole evidence is gunshot residue.

But in Jones' case, Circuit Judge John N. Prevas recognized the important role gunshot residue played for the city jury that convicted him.

Jones was accused of shooting to death Tyree Wright, 15, outside a house in the 1700 block of E. Federal St. The jury acquitted Jones of all the first-degree-murder and handgun counts but convicted him of conspiracy to commit murder.

In an investigation by The Sun published this year, a juror in Jones' trial said she could not have "sat up there with good grace and say he'd done it" without the gunshot residue evidence.

Prevas, when he sentenced Jones, called the case "extremely vexatious."

"You have this very strange situation where a man who was immediately identified as the defendant happened to have gunshot residue on his hands," he said during that 1999 hearing. "I think that is what caused the jury to resist the fairly elaborate defense that the defendant put on as to why he was a victim of circumstances."

Prevas told Jones to come back if he could find new evidence. The judge rejected Jones' first motion for a new trial, in May 2004, saying it was a "Hail Mary pass."

At that time, his defense attorneys had documents saying police believed that one of the rooms in which they collected gunshot residue may have been contaminated by a nearby firing range. But Jones' hands were swabbed in a completely different area of the building.

But over the past year, public defenders have gathered police documents in other gunshot residue cases that suggest flaws in the way the evidence was - and still is - collected.

In particular, they've been buoyed by a February ruling by Circuit Judge John C. Themelis, in a separate case, finding that a city police lab analyst's conclusion about gunshot residue fell short of accepted scientific standards.

The problem in that case, the judge found, was that Joseph Harant, the city's only gunshot residue analyst, labeled a two-element particle as "uniquely" gunshot residue although many police departments, including the FBI, consider only three-element particles to be "unique."

Police spokesman Matt Jablow has said the department "respectfully and vigorously" disagrees with Themelis.

Patrick Kent, chief of the public defender's forensics division, said his office began reviewing hundreds of other cases after the ruling to see if any used the type of gunshot residue evidence that Themelis had deemed unacceptable.

Kent's office also has been looking for cases like Jones', where only one or two particles of gunshot residue were found.

One of the two particles on Jones' left hand was a two-element particle; the other was a three-element particle.

Looking through through boxes of old files has been "a fairly overwhelming task" in which they're still immersed, Kent said. Meanwhile, public defenders also are trying to keep track of coming cases that use any kind of gunshot residue evidence.

"Litigation involving [gunshot residue] has taken an inordinate amount of resources," he said. "That has been further hindered by the lack of cooperation from the state's attorney's office."